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as to the goodness of the title, yet if there be a reasonable ] doubt either as to a matter of law or matter of fact involved in it, a purchaser will not be compelled to complete; and such a title, though it may be perfectly secure and unimpeachable as a holding title, is said, in the current language of the day, to be unmarketable.

It is not, perhaps, very important now to enquire how it happened that a court of such high and potent jurisdiction as the Chancery, should have permitted itself to entertain so ambiguous a doctrine as that of doubtful titles; but yet a short consideration of the reason may be useful, inasmuch as it will show that this doctrine has sprung from the imperfect powers of the court for deciding upon questions of title, and will account for the existence of a different practice at law. If a true regard to its own dignity and the interests of its suitors, had prevailed in this instance, it is not very difficult to see that it would never have recognized such a doctrine. The court would have felt that it was bound to decide conclusively between the claims of litigating parties, and if its authority was not large enough to enable it to clear up all the doubts which could be raised, means would have been found to render its power concurrent with the necessities of its jurisdiction.

The title to landed estate must, it is needless to observe, generally involve a considerable series both of matters of fact and matters of law:— the former extending over a period of sixty years at least, and very often more nearly to a century; the latter *embracing the con[ *4 ] struction of the series of deeds, wills, and other legal documents which constitute the various links of title during that period. It is not matter of surprise, therefore, that questions should very frequently arise which involve great nicety both as to certain facts and certain points of law. For dealing with such questions the powers and machinery of the Court of Chancery are very imperfectly constructed, and, in fact, altogether unequal to the final and conclusive disposition of them. In suits for specific performance, (b) the court has no power, except on the application, or by the consent of all parties *to [ 5 the suit, to direct an issue for the determination of a matter of fact; nor can it, without such application or consent, direct a case or an action for the purpose of satisfying itself on a point of [ *6 law (c). *Hence, if any doubts arise either as to the fact or

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(b) Roake v. Kidd, 5 Ves. 647. An heir at law may have an issue devisavit vel non in a suit for establishing a will against him, and a rector an issue to try the validity of a modus in a suit for the payment of tythes, at the hearing of the cause as matter of right; and these are the only cases in which an issue can be so claimed. It cannot be doubted that a legislative enlargement of the power of the court, in matters of this kind, would contribute greatly to its efficiency in the administration of justice.

One of the suggestions for the improvement of the court, left among the papers of Sir S. Romilly, was this, "that the court should have power, upon motion, in cases where it sees expedient, to direct an issue before the hearing." (Report of Ch. Com. App. A. p. 54.) It would seem to be equally expedient to arm the court with more extensive powers for getting the opinion of a court of competent jurisdiction on matters of law.

It may seem also to be deserving of consideration whether the court ought not to have more compulsory powers for compelling the trial of an issue or a case, and of granting an issue or a case, on the application of one party to the suit, where the whole merits of the case turn upon the decision of a simple fact or point of law.

(c) The state of the law on this subject is singular: It seems the court has no authority to direct a case without the consent of the parties, and if such a case be directed neither the Chancellor (Prebble v. Boghurst, 1 Swanst. 320,) nor the parties to the suit are bound by the certificate, which may be returned. (Sharp v. Adcock, 4 Russ. 375.)

the law involved in the title, and the purchaser be an *unwilling one, as his consent cannot, of course, be had to an issue or a case, the court therefore being deprived of the only competent means of informing its conscience, is placed

Though the Chancellor has no authority to direct a case without consent for the purpose of informing his conscience, he has power to call in the judges to give him their opinion as assessors; but what they say is merely opinion and advice, and no way binding upon him. This is well illustrated in the great case of the Duke of Norfolk, (3 Ch. Ca. 1.) In_that case Lord Nottingham called in to his assistance, the Lord Chief Justice Pemberton, Lord Chief Justice North, and the Lord Chief Baron Montague, all of whom delivered their opinion clearly against that of the Lord Chancellor, but he nevertheless decided on his own opinion. The manner in which, in this most eloquent judgment, his lordship refers to this point, is very beautiful:-"What hath been said here at the bench on both sides, has been taken in short-hand, and made public; I know the counsel on both sides hath seen it, or will see and look into it well; and if they can give me any reasonable satisfaction that I am in the wrong, I shall easily recede from it. But upon anything yet offered, I am of the same mind I was. As to the learned judges that assisted me at the hearing, the decree is mine, and the oath that decree is made upon is mine, theirs is but learned advice and opinion. And therefore, if they can satisfy my conscience that they are in the right, and I not, well and good; if not, I must abide by that decree, I have made according to my conscience, (ibid 39.) And, again, on a subsequent day-" In truth I am not in love with my own opinion, and I have not taken all this time to consider of it, but with very great willingness to change it, if it were possible: I have as fair and as justifiable an opportunity to follow my own inclinations, (if it be lawful for a judge to say he has any,) as I could desire; for I cannot concur with the three chief judges, and make a decree that would be unexceptionable. But it is my decree, I must be saved by my own faith, and must not decree against my own conscience and reason. ." (ibid 47.) And finally, after having by the most conclusive series of arguments, delivered with the greatest consideration, and at long intervals, satisfied himself that the settlement, which it was the object of that suit to set aside, was "good both in law and equity," he concludes thus:-"If I could alter my opinion, I would not be ashamed to retract it; for I am as other men are, and have my partialities as other men have. When all this is done, I am at the bar desired to consider further of this case. I would do so if I could justify it; but expedition is as much the right of the subject as justice, and I am bound by Magna Charta “Nulli negari, nulli differre justitiam." I have taken as much pairs and time as I could to be informed; I cannot help it, if wiser men than I be of another opinion: but every man must be saved by his own faith, and I must discharge my own conscience," (ibid 52.)

In Wykham v. Wykham, (18 Ves. 395) the Court of King's Bench in a case sent for its opinion, certified that certain parties took an estate in fee, the Court of Common Pleas on the same case, certified that they took nothing.-Lord Eldon differed from them both, and decreed accordingly.

In Lansdowne v. Lansdowne, (2 Bligh 86,) Lord Eldon, adverting to a statement that the Lord Chancellor of Ireland after the return of the certificate from the Common Pleas, retained an opinion contrary to that certificate, but made a decree according to it, from deference to the judges of the Common Pleas, observes "In that surely there must be some mistake; for although it is highly useful in legal questions, to resort to the assistance of courts of law, yet it must be well known to those experienced in the practice of courts of equity, that they are not bound to adopt the opinion of the courts of law, to which they send for advice. It has occurred to me," said his lordship, (adverting probably to Wykham v. Wykham, just cited), "to send the case successively to the Court of King's Bench and Common Pleas, and not to adopt the opinion (though highly to be respected) of either of those courts."

The application for the new trial of an issue must be made to the judge by whom the issue was directed, (Lord Lyndhurst's Orders in Chancery, No. 47:) The party applying for new trial must, on an ex parte application, satisfy the judge that there is reasonable ground for questioning the verdict, before he will send to the judge who tried the issue for his notes of the trial, (Morris v. Davies, 3 Russ. 318.) Where on the trial of an issue out of Chancery, it is ordered that a third party should be at liberty to attend the trial, the counsel for such party will not be permitted to call witnesses; or address the jury, on the principle that if the court which decreed the issue had intended to allow him this privilege, he would have been made a party to the issue. If he were allowed to address the court, there appears to be no reason why he should not also be allowed to call witnesses; and, if so, then a case might be presented to the court, wholly different from that in contest between the plaintiff and defend

in this dilemma,—either to take upon itself the decision of the fact or the construction of the law, which it would do " at the hazard of what might be afterwards determined in a court of law," (d)-or to re[ *9 ] fuse to interfere on behalf of the vendor, an alternative which it is entitled to take, on the principle that a bill for the specific performance of a contract, is an application to the discretion of the court, and a decree cannot, therefore, be claimed as a matter of right. The alternative which a Chancellor, having before him the fear of the verdict of twelve jurymen, or the opinion of the twelve judges of England would adopt, is very obvious; he would exercise his discretion by declining to interpose the extraordinary jurisdiction of the court, rather than incur the hazard of having his decree, and all the proceedings upon it, over-hauled and nullified by the decision of a court of common law. (e)

It is scarcely necessary to observe, that the jurisdiction of enforcing the performance of contracts is not of very remote origin, and was at first very sparingly exercised; the court, until this jurisdiction was fully established, never entertaining the suit unless the party [ *10 ] seeking performance had first obtained damages at law, which, where they had been obtained by the vendor, had the effect of giving the sanction of a court of law to the title, and consequently rendered it unnecessary for the Court of Chancery to agitate its validity. This practice was changed by Lord Somers, the first Chancellor who appears to have ant, and by consequence a different issue raised from that intended to be raised by the order. On this ground such a party is allowed only to cross-examine, and submit points of law.

The grounds on which courts of equity grant new trials, essentially differ from those on which courts of common law proceed. In Savage v. Carroll, (2 Ball and Beat. 445,) on a motion for a new trial, on the ground that the verdict had not been supported by evidence, Lord Manners laid it down that "to enable the court to disturb the verdict, it must be either contrary to the evidence, or given under the misdirection of the judge." This is a very narrow and imperfect, not to say very erroneous, statement of the grounds on which courts of equity grant new trials. The true question is, whether the Lord Chancellor, looking to all the proceedings both in equity and at law, be satisfied; for if he be satisfied he will not direct a new trial merely because the judge who tried the issue, miscarried in his direction, or evidence was rejected which ought to have been omitted, or vice versa. The leading cases are, Stace v. Mabbott, 2 Ves. sen. 552; Matthews v. Warner, 4 Ves. 186; O'Connor v. Cooke, 8 Ves. 535; Warden of St. Paul's v. Morris, 9 Ves. 145; Pemberton v. Pemberton, 11 Ves. 50; ib. 13 Ves. 289; Hampson v. Hampson, 3 Ves. and Bea. 41; ex parte Kensington, Coop. 96; Whalley v. Whalley, 3 Bligh, 1; Trimlestown v. Lloyd, 1 Bligh, N. S. 427; Powell v. Sonnet, ibid. 545; Burnand v. Nerot, 2 Bligh, N. S. 215; Wilkinson v. Chapman, 3 Russ. 145; White v. Lisle, Swanst. 344; and see the references in 8 Bro. P. C. (Index,) titles "Issue" and "Trial (new.)"

Courts of common law will not answer a case stated as a trust; the question must be raised on a legal estate, (Parsons v. Parsons, 5 Ves. 581; Bailey v. Morris, 4 Ves. 793;) nor will they answer a case on a limitation of money, but it may be stated as a limitation of a term of years, (Doo v. Brabant, 4 T. R. 710;) nor will they answer speculative or hypothetical questions, the case must state an actual conveyance that will raise the question, (Bliss v. Collins, 1 Jac. and Walk. 427;) and this, says Lord Eldon, is included in the usual direction in the order, that all facts necessary to bring the matter into question are to be stated. (Ibid.) The case ought, properly, to be signed by the counsel on both sides, but if the counsel on either side will not sign it, the course is, that they are understood to waive the benefit of it. (Ibid.) (d) Jones v. the Parishes of Montgomery, 3 Swant. 226.

(e) The motive which may be supposed to have influenced the court in cases like these is not inaptly alluded to by Sir Anthony Hart, who, in reference to a suit for partition of a house, at the instance of termors, says, "the partition of the house must re-model and reconstruct the whole fabric of the building; and it would throw some discredit upon the jurisdiction of the court, if the landlord, disliking the alterations, should, in defiance of the decree, enter for the waste committed, and turn both parties, with the court and its decree, out of doors." (North v. Guinan, 1 Beatt. 345.) See Halsey v. Grant, 13 Ves. 76, as to the origin of the equitable jurisdiction for specifically enforcing contracts.

entertained the jurisdiction of decreeing performance of an agreement, in cases where the plaintiff had not previously obtained damages at law. (b) In consequence of this change in the practice, it became necessary for the court in a suit for specific performance, to look at the title; for it would have been a very curious sort of equity to compel a purchaser, objecting on the ground of a defective title, to accept a bargain for an estate, without its being satisfactorily shown that the alleged defect had no existence. Hence arose the collateral, or secondary, issue, which is always determined in the first instance by a reference to the master, to enquire "whether the vendor can make a good title?" the first and principal issue in the suit, that which is tried at the hearing of the cause, being whether the contract be a good and valid contract, free from fraud, and such as in equity and good conscience ought to be carried into effect? The right determination of this secondary issue, necessarily [ *11 ] raised all the questions of law and fact involved in the title. And it is obvious, by adverting to what has been already stated, that when it became necessary for the court to look at these questions, its imperfect jurisdiction in matters of fact and law, would very soon be felt; and that, as a necessary consequence, the powers of the court must be enlarged, or doubtful titles would spring into existence. The latter course was unfortunately suffered to prevail, and accordingly we find, that the introduction of the doubtful title doctrine was almost simultaneous with the change of practice introduced by Lord Somers, the first reported case(e) on this. subject, having been decided by Sir Joseph Jekyll, his cotemporary and friend, and, therefore, of necessity, very shortly after that period, when the court took upon itself to enforce the specific performance of a contract, without first sending the plaintiff to establish his right in a court of law.(d)

*In Marlow v. Smith the question was whether a trust [ *12 ] estate passed under general words of devise; for if it did pass, a good title could not be made. It was argued that "if there was the least doubt of the title (which it was made to appear there was, by the opinions of Serjeant Hooper and Mr. Webb,) it would by no means be proper for the Court of Chancery to compel the purchaser to accept the title; for in such case, if the purchaser should be sued, where could he have recourse to for redress?" And Sir Joseph Jekyll, M. R., after intimating his concurrence in the doubts which had been raised, refused accordingly to enforce the contract, observing that "there being the opin

(b) See Dodsley v. Kinnersley, Amb. 406, where Sir Thos. Clarke, M. R., speaking with reference to a patentee seeking an account says, "the old practice was like the case of agreements before Lord Somers's time; the party was sent to law, and if he recovered any thing by way of damages, this court entertained the suit."

(c) Marlow v. Smith, 2 P. W. 198.

(d) The view which has been here taken of the origin of doubtful titles is, it is conceived, grounded on considerations sufficiently obvious to render unnecessary any reference to authority it may, nevertheless, be satisfactory to observe, that in one of the earliest cases on this subject (Cooper v. Denne, 4 Bro. C. C. 87,) the same view is manifestly taken by Eyre, Lord Commissioner, although it does not appear to have been adverted to in any of the subsequent cases. His Lordship observes, that "In suits for specific performance of contracts it is always in the discretion of the court whether they will decree on a specific performance, or not. In the particular case of a bill for a specific performance of a contract for the sale of an estate, where there are considerable difficulties on the face of the title, and there are no means of clearing them up, and no jurisdiction to bind the question, I think that is not the case: for decreeing a specific performance."

ion of learned men against this title, I will not, nor, do I think it reasonable, that a court of equity should compel the purchaser to accept the purchase." This is the first reported case of a bill for specific performance being dismissed on the ground of a mere doubt as to a poin tof law involved in the title; and it is singular, that for the long period during which Lords Hardwicke and Northington presided over the Court of Chancery, not another of this description *is mentioned, al

[ *13 ] though we have Sir W. Grant's authority for stating that this doctrine was repeatedly acted upon by Lord Hardwicke.(g)

Lord Eldon has frequently referred to this doctrine in terms of disapprobation, although it may be said in a great degree to have grown up and attained its maturity under his decisions. By a lapse of memory, which is the more remarkable in a judge whose recollection was so extensive, and for the most part so accurate, the introduction of this doctrine of doubtful titles in the courts of equity, is ascribed by him to Lord Thurlow; and the case of Shapland v. Smith, (h) (decided at [ *14 ] *least half a century after Marlow v. Smith, which has been adverted to, and with which Lord Eldon must necessarily have been familiar,) has been repeatedly mentioned by him as the first case on the subject. In Stapylton v. Scott, (i) his Lordship thus expresses himself:

The habit of this court formerly was, not to refuse the decree for a specific performance, upon the ground that the title was doubtful. The court, relying on its own opinion in favour of the title, would not admit any doubt, detracting from the value of that opinion; and the notion was very generally entertained, that the true way of getting rid of the difficulty, arising from any doubt, was by an appeal to the House of Lords. The course has, however, varied entirely; and it has been held repeatedly that, though in the judgment of the court, the better opinion is that a title can be made, yet if there is a considerable, a rational doubt, the court has not attached so much credit to its own opinion as to compel a purchaser to take the title, but leaves the parties to law." Adverting to the same subject in Jervoise v. The Duke of Northumberland, (4) he states the former law and the change in the following terms::-"The law [ *15 ] *of the court has altered in my time. When I first began to practice the rule was this,-when the court had once determined that a party was tenant in tail or tenant for life, with an absolute power of ap

(g) "It has been said, that every title is good or bad, and the court ought to know nothing of a doubtful title; but the court has adopted a different principle of decision. It was not first introduced by Lord Thurlow, but is at least as old as Sir Joseph Jekyll's time, and was repeatedly acted upon by Lord Hardwicke." Per Sir W. Grant, in Sloper v. Fish, 2 Ves. and Bea. 149.

(h)"The first instance is the case of Shapland v. Smith, (1 Bro. C. C. 75,) in which the single question between Baron Eyre and Master Hett was whether there was a use executed or not? and the case sunk down into this state, that with so much difficulty upon the title, a purchaser should not be compelled to take it." (Per Lord Eldon, in Vancouver v. Bliss, 11 Ves. 465.) In Stapleton v. Scott, 16 Ves. 274, he refers to the same case in very nearly similar words. "The first modern case of that sort," his Lordship there observes," was, I believe, Shapland v. Smith, in which Master Hett differed from Baron Eyre, and the opinion of the former was confirmed by Lord Thurlow, who, however, felt the doubt so forcibly, that he refused a specific performance, and unquestionably in many instances since that time, it has been refused where there was reasonable doubt upon the title." See also Jervoise v. the Duke of Northumberland, 1 Jac. & W. 563, where his Lordship uses language very nearly to the same effect.

(i) 16 Ves. 272.

(k) Jac. and Walk. 568.